Citation NR: 9704582
Decision Date: 02/14/97 Archive Date: 02/19/97
DOCKET NO. 94-27 054 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Baltimore, Maryland
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of service connection for defective hearing of
the right ear.
2. Entitlement to an increased rating for defective hearing
of the left ear, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. P. Reardon, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1950 to June
1954. A December 1985 decision by the Board of Veterans’
Appeals (Board) denied the veteran's claim of service
connection for defective hearing. By an action taken in
September 1988, the RO denied the veteran's claim to reopen
the claim of service connection for defective hearing. No
appeal was initiated by the veteran.
By rating action taken in January 1993, service connection
was granted for defective hearing of the left ear as
secondary to service-connected otitis media of the left ear
and was rated as 10 percent disabling.
Recently, the veteran requested that the claim for
entitlement to service connection for defective hearing of
the right ear be reopened and that an increased evaluation
for defective hearing of the left ear be granted. The
present matter comes before the Board on appeal from a
September 1993 rating decision by the Baltimore, Maryland RO,
which found that new and material evidence had not been
submitted sufficient to reopen the veteran's claim.
The Board notes that the veteran has raised the issue of
service connection for tinnitus both in a January 1997
Informal Hearing Presentation and during a December 1996
central office hearing. Since this issue has not been
developed for appellate review, and is not inextricably
intertwined with the issues currently before the Board, it is
referred to the RO for appropriate action.
The Board also notes that the veteran submitted a statement
from Henry Tobin, Ph.D. during a December 1996 central office
hearing. Although the statement was submitted without waiver
of consideration by the RO, the Board notes that the
statement was previously submitted to the RO in May 1994.
Therefore, remand to the RO for consideration of the
statement is not warranted.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred by failing to grant
service connection for defective hearing of the right ear.
He further contends that an increased rating is warranted for
his service-connected defective hearing of the left ear.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence to
reopen a claim of service connection for defective hearing of
the right ear has been submitted.
(Consideration of the issue of entitlement to an increased
rating for defective hearing of the left ear, currently
evaluated as 10 percent disabling, is deferred pending
completion of the development sought in the REMAND below.)
FINDINGS OF FACT
1. A claim of service connection for defective hearing was
denied by decision of the Board dated in December 1985. A
claim to reopen was denied in September 1988, and no appeal
was initiated.
2. Evidence has been received since the earlier denials that
was not previously available and which is relevant and
probative on the question of service connection. This new
evidence raises a reasonable possibility of changing the
previous outcome.
CONCLUSION OF LAW
New and material evidence warranting reopening of a claim of
service connection for defective hearing of the right ear has
been received. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108 (West
1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran's claim is well
grounded within the meaning of § 5107. In other words,
evidence has been submitted that makes his claim a plausible
one--"capable of substantiation." Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). The veteran testified in both an
April 1994 personal hearing and a December 1996 central
office hearing that he noticed his hearing was going bad when
he was knocked off a hill by a shell blast in Korea. He
maintained that service connection had been granted for
defective hearing of the left ear and should be granted for
defective hearing of the right ear as well. An undated
statement by Henry Tobin, Ph.D., audiology supervisor at VAMC
Fort Howard, Maryland, was first received by the RO in May
1994. In the statement, Dr. Tobin opines that “whatever
caused the hearing loss in one ear must have also had a near
equal effect on the opposite ear.” It was also his opinion
that “etiology is most likely associated with high noise
exposure.” The veteran's testimony, considered alongside Dr.
Tobin's statement, makes his claim of service connection for
defective hearing of the right ear a plausible one. However,
the veteran's current claim is not his first attempt at
securing a grant of service connection for defective hearing
of the right ear.
A claim of service connection for defective hearing was
denied by the Board in December 1985. A claim to reopen was
denied by the RO in September 1988. The veteran did not
appeal this denial. See 38 C.F.R. § 20.302.
The claim, however, will be reopened if new and material
evidence has been submitted since the last final decision on
the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio
v. Derwinski, 1 Vet.App. 140, 145 (1991); Evans v. Brown,
9 Vet.App. 273 (1996). The issue of new and material
evidence must be addressed in the first instance by the Board
because it goes to the Board’s jurisdiction to reach the
underlying claim and adjudicate the claim de novo. See
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g
8 Vet.App. 1 (1995). Once the Board finds that no such
evidence has been offered, that is where the analysis must
end, and what the RO may have determined in this regard is
irrelevant. Id. Further analysis, beyond the evaluation of
whether the evidence submitted in the effort to reopen is new
and material, is neither required nor permitted. Id. at
1384. Any finding entered when new and material evidence has
not been submitted “is a legal nullity.” Butler v. Brown,
9 Vet.App. 167, 171 (1996) (applying an identical analysis to
claims previously and finally denied, whether by the Board or
by the RO).
In determining whether new and material evidence has been
submitted, the Board must conduct a two part analysis. See
Manio, supra. First, it must be determined whether the
evidence presented or secured since the prior final
disallowance of the claim is new and material. See Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991). New evidence is
evidence that is not merely cumulative of other evidence on
the record. Ibid. Evidence is material where it is relevant
to and probative of the issue at hand and where it is of
sufficient weight or significance (assuming its credibility,
see generally, Justus v. Principi, 3 Vet.App. 510, 513
(1992)) that there is a reasonable possibility that the new
evidence, when viewed in the context of all the evidence,
both new and old, would change the outcome. Sklar v. Brown,
5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98
(1993); Colvin, 1 Vet.App. at 174. Second, if it is
determined that the evidence is new and material, the Board
must reopen the claim and evaluate the merits of the
veteran's claim in light of all the evidence, both old and
new. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992).
As already mentioned, the veteran has provided a medical
opinion that defective hearing of his right ear has the same
etiology as service-connected hearing loss of the left ear,
and that said etiology is most likely acoustic trauma. Such
information was not available when the claim of service
connection was originally denied. The opinion rendered by
Dr. Tobin, based on his own medical expertise, is probative
of the question at issue and raises a reasonable possibility
that the earlier outcome would change. The veteran's claim
of service connection should therefore be reopened.
ORDER
A claim of entitlement to service connection for defective
hearing of the right ear is reopened and, to this extent, the
appeal is granted.
REMAND
In light of the Board's conclusion that the claim of service
connection is reopened, consideration must be given to whether
additional development is required in order to ensure that the
veteran's procedural rights are protected so far as his being
given adequate notice and opportunity to present evidence on
the underlying question of service connection. Bernard v.
Brown, 4 Vet.App. 384 (1993). As already noted, the RO
determination appealed by the veteran was whether evidence had
been received sufficient to reopen the claim. Now that this
question has been settled, the Board finds that the veteran
should be given an opportunity to submit evidence on the
substantive question of entitlement to service connection. In
order to give the veteran adequate notice of the need to
submit such evidence, and to allow the RO the opportunity to
adjudicate the merits of the claim of service connection on a
de novo basis, a remand is required. Id.
Additionally, the Board notes that Dr. Tobin opines that high
noise exposure most likely caused the high frequency hearing
loss found in both the veteran's left and right ears. Dr.
Tobin seemingly relies on VA audiology reports dated from May
1984 to November 1992. However, it is noted that service
connection for defective hearing of the left ear was granted
secondary to otitis media, and was not attributed to acoustic
trauma.
Accordingly, in order to ensure that VA has fulfilled its
obligation to assist the veteran in the development of
evidence pertinent to his plausible claim, the case will be
remanded for an additional medical evaluation to clarify the
etiological relationship, if any, between any current
defective hearing of the right ear, and any acoustic trauma
sustained in service. Consequently, the case is REMANDED for
the following actions:
1. In the event that the veteran has
recently received treatment, VA or
private, for his hearing disorder, copies
of those records should be obtained for
inclusion the claims folder, after the
necessary releases are secured.
2. The RO should arrange for a VA
audiological examination, to include
assessments of hearing loss of both ears,
if found to be present. Audiometric
testing should include results sufficient
to apply the criteria of 38 C.F.R.
§ 3.385 (1996). The examiner should
thoroughly review the claims folder prior
to examination, and to the extent
possible, express an opinion regarding
whether it is at least as likely as not
that any current hearing disorder of the
right ear is attributable to acoustic
trauma sustained during service.
Consideration should be given to the
statement by Dr. Tobin submitted in May
1994 when answering this question. The
examiner should provide supporting
rationale for all opinions expressed.
3. After completion of the development
sought above, the RO should take
adjudicatory action on the substantive
question of service connection for
defective hearing of the right ear. The
claim should be evaluated on a de novo
basis, giving consideration to all the
evidence of record, including that
received after the case was forwarded to
the Board in 1996. Any additional
development deemed necessary should be
undertaken. Regardless of the outcome of
that determination, the RO should also
consider the veteran’s claim for an
increased rating for his service-
connected defective hearing of the left
ear. If either benefit sought is not
granted, a supplemental statement of the
case should be issued.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review. No action is required of the
veteran until he receives further notice. The purposes of
this remand are to procure clarifying data and to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of this appeal.
N. R. ROBIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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